The Senate on Friday reauthorized for five years broad
electronic eavesdropping powers that legalized and expanded the President George
W. Bush administration’s warrantless wiretapping program.

The FISA Amendments Act,
(.pdf) which was expiring Monday at midnight, allows the government to
electronically eavesdrop on Americans’ phone calls and e-mails without a
probable-cause warrant so long as one of the parties to the communication is
believed outside the United States. The communications may be intercepted “to
acquire foreign intelligence information.”

The House
approved the measure in September. President Barack Obama, who said the spy
powers were a national security priority, is expected to quickly sign the
package before the law Congress codified in 2008 expires in the coming days.
Over the past two days, the Senate debated and voted down a handful of
amendments in what was seen as largely political theater to get Sen. Ron Wyden
(D-Oregon) to lift a procedural hold on the FISA Amendments Act legislation that
barred lawmakers from voting on the package.

In the end, the identical package the House passed 301-118
swept through the Senate on a 73-23 vote.

The American Civil Liberties Union immediately blasted the
vote.

“The Bush administration’s program of warrantless wiretapping,
once considered a radical threat to the Fourth Amendment, has become
institutionalized for another five years,” said Michelle Richardson, the ACLU’s
legislative counsel.

Amendments senators refused to enact included extending the
measure for just three years, another one requiring the government to account
for how many times Americans’ communications have been intercepted, and one by
Wyden prohibiting U.S. spy agencies from reviewing the communications of
Americans ensnared in the program.

“The amendment I fought to include would have helped bring the
constitutional principles of security and liberty back into balance and intend
to work with my colleagues to see that the liberties of individual Americans are
maintained,” Wyden said immediately after the vote.

The legislation does not require the government to identify
the target or facility to be monitored. It can begin surveillance a week before
making the request, and the surveillance can continue during the appeals process
if, in a rare case, the secret FISA court rejects the surveillance application.
The court’s rulings are not public.

The government has also interpreted the law to mean that as
long as the real target is al-Qaeda, the government can wiretap purely domestic
e-mails and phone calls without getting a warrant from a judge. That’s according
to David Kris, a former top anti-terrorism attorney at the Justice
Department.

In short, Kris said the FISA Amendments Act gives the
government nearly carte blanche spying powers.

For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S.
person located abroad—could allow the government to wiretap any telephone that
it believes will yield information from or about al Qaeda, either because the
telephone is registered to a person whom the government believes is affiliated
with al Qaeda, or because the government believes that the person communicates
with others who are affiliated with al Qaeda, regardless of the location of the
telephone.

After Obama signs the legislation Friday, the spy powers won’t
expire until December 31, 2017.

The law is the subject of a Supreme Court challenge. The Obama
administration argues that the American Civil Liberties Union and a host of
other groups suing don’t have the legal standing to even bring a challenge.

A federal judge
agreed, ruling the ACLU, Amnesty International, Global Fund for Women, Global
Rights, Human Rights Watch, International Criminal Defence Attorneys
Association, The Nation magazine, PEN American Center, Service Employees
International Union and other plaintiffs did not have standing to bring the case
because they could
not demonstrate that they were subject to the warrantless eavesdropping.

The groups appealed to the 2nd U.S. Circuit Court of Appeals,
arguing that they often work with overseas dissidents who might be targets of
the National Security Agency program. Instead of speaking with those people on
the phone or through e-mails, the groups asserted that they have had to make
expensive overseas trips in a bid to maintain attorney-client confidentiality.
The plaintiffs, some of them journalists, also claim the 2008 legislation chills
their speech, and violates their Fourth Amendment privacy rights.